In re the Matter of the Involuntary Termination of Parent-Child Relationship of D v. L.P v. and J.M., Minor Children, T.F. (Mother) and L v. (Father) v. Ind. Dept. Child Services (mem. dec.)

MEMORANDUM DECISION
Jul 01 2015, 9:06 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
MOTHER Gregory F. Zoeller
Amy Karozos Attorney General of Indiana
Greenwood, Indiana Indianapolis, Indiana

ATTORNEY FOR APPELLANT Robert Henke
David Corey
FATHER
Deputy Attorneys General
Mark Small Indianapolis, Indiana
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Matter of the July 1, 2015
Involuntary Termination of Court of Appeals Case No.
Parent-Child Relationship of 60A01-1411-JT-496
D.V., L.P.V., and J.M., Minor Appeal from the Owen Circuit Court
Children, The Honorable Erik C. Allen,
Special Judge
T.F. (Mother) and L.V. (Father)
Trial Court Case Nos.
Appellants-Respondents, 60C01-1402-JT-012
60C01-1402-JT-013
v. 60C01-1402-JT-014

Indiana Department of Child
Services and Owen County
CASA
Appellees-Petitioners.

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 Mathias, Judge.

[1] T.F. (“Mother”) and L.V. (“Father”) appeal the order of the Owen Circuit

Court terminating their parental rights to their children, L.P.V. and D.V.

Mother also appeals the termination of her parental rights to her child, J.M.1

On appeal, Mother and Father both claim that the evidence was insufficient to

support the trial court’s decision to terminate their parental rights and that they

received ineffective assistance of counsel.

[2] We affirm.

Facts and Procedural History

[3] On March 18, 2010, DCS received a report that Mother and newly born D.V.

had both tested positive at the hospital for marijuana following D.V.’s birth.

DCS received another report on May 5, 2010, that Mother and Father were not

cooperating with staff at Riley Hospital, where D.V., who was born premature,

was hospitalized, and that Mother and Father could not be located to give

consent for a medical procedure for D.V. DCS detained D.V. so that it could

consent to her medical procedure. On May 19, 2010, DCS initiated a CHINS

proceeding for D.V. D.V. was released from the hospital on May 24, 2010, and

after spending a week in foster care, was returned to Mother and Father upon

authorization by the court.

1
L.V. is not J.M.’s biological father. J.M.’s biological father voluntarily terminated his parental rights to J.M.
and is not a party to this appeal.

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[4] The trial court dismissed the CHINS action on July 6, 2010, but approved the

proposed informal adjustment plan for Mother and Father. The informal

adjustment plan required both parents to submit to drug screens, complete

substance abuse treatment, and abstain from drug use. Parents’ compliance

with the informal adjustment plan was sporadic.

[5] On October 1, 2010, Mother and Father both submitted to drug screens and

both tested positive for THC. A few days later, on October 6, Mother and

Father were arrested on drug charges, and DCS removed D.V. and her siblings,

L.P.V. and J.M., and initiated a CHINS case for all three children. The trial

court held a fact-finding hearing on February 4, 2011, after which it adjudicated

all three children CHINS. The court issued its dispositional order on May 13,

2011, ordering Parents to participate in reunification services. On September

21, 2011, the children were returned to Parents for a trial home visit. Several

weeks later, on November 2, 2011, the court ordered the children removed after

law enforcement responded to a domestic violence call at Parents’ house, and

Father was arrested on an outstanding warrant.

[6] DCS filed a petition to terminate Mother and Father’s parental rights on

February 2, 2012. The trial court denied DCS’s petition on April 3, 2013,

finding that Mother and Father had made improvements in their circumstances

and that DCS failed to prove that the conditions that led to the children’s

removal would not be remedied and that the continuation of the parent-child

relationship would pose a threat to the well-being of the children. Mother’s

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 Supplemental App. p. 8. The children remained in foster care, and the trial

court ordered Parents to participate in reunification services.

[7] Approximately two months later, on June 6, 2013, Mother tested positive for

marijuana after a drug screen. Father refused to submit to his July 2013 drug

screen. On August 5, 2013, while the children were with Parents during an

unsupervised visit, Father shoved Mother into D.V., knocking D.V. down.

Three days later, during a fight, Father grabbed Mother, pushed her to the

ground, stomped on her face, and dragged her down a gravel road.

[8] Father participated in mental health treatment sessions from July 2013 to

September 2013, during which he was diagnosed with adjustment disorder with

mixed anxiety and depressed mood, intermittent explosive disorder, and

cannabis dependence. After September 2013, Father stopped contacting his

therapist until November 27, 2013. He stopped meeting his therapist again after

January 2014.

[9] On November 5, 2013, the court ordered that Parents’ visits be supervised due

to the recent domestic violence incidents between Mother and Father, as well as

their respective drug screen results. Approximately one week later, Father

arrived at DCS’s office and demanded to speak with the family case manager,

Branan Neeley (“FCM Neeley”), threatening to physically attack him. Father

also damaged a glass window in the office. He later stated that his actions were

“justified.” Tr. pp. 370-71. Then, in January 2014, Father told his therapist that

he was going to shoot FCM Neeley in the head and made threats against the

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 lives of other DCS employees. DCS filed a police report and FCM Neeley was

transferred off the case and obtained a protective order against Father.

[10] The trial court held a review hearing on February 6, 2014, and found that

Parents had not complied with the reunification plan. DCS filed its second

termination petition on February 11, 2014. The trial court held a hearing on

DCS’s petition on May 7, 2014. Mother and Father both failed to appear, but

Mother’s counsel was present. Following the hearing, Father again contacted

his therapist and made statements threatening to kill people associated with the

case if his children were not returned to him.

[11] On May 21, 2014, Father was arrested and charged with Class D felony

intimidation for his threats and Class B misdemeanor criminal mischief for the

damage he caused to the window at the DCS office. During his post-arrest

interview with an Indiana State Police investigator, Father proudly described

himself as “very violent” and as a drug dealer and gang-banger. Tr. pp. 188-89.

He also admitted that he had been smoking spice and snorting heroin for the

preceding seven days.

[12] On May 28, 2014, the presiding judge of the trial court recused herself, and a

special judge was appointed. The trial court held a new termination hearing on

July 22, 23, and 31, 2014. Father was incarcerated at the time but appeared in

person and by counsel. Mother and her counsel also appeared. The trial court

issued an order terminating Mother and Father’s parental rights on October 17,

2014.

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[13] Mother and Father now appeal.

I. Sufficiency

[14] We review termination of parental rights with great deference. In re K.S., 750

N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge

credibility of witnesses. In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004),

trans. denied. Instead, we consider only the evidence and reasonable inferences

most favorable to the judgment. Id. In deference to the trial court’s unique

position to assess the evidence, we will set aside a judgment terminating a

parent-child relationship only if it is clearly erroneous. In re L.S., 717 N.E.2d

204, 208 (Ind. Ct. App. 1999), trans. denied.

[15] When, as here, a judgment contains specific findings of fact and conclusions

thereon, we apply a two-tiered standard of review. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). We determine first whether

the evidence supports the findings and second whether the findings support the

judgment. Id. “Findings are clearly erroneous only when the record contains no

facts to support them either directly or by inference.” Quillen v. Quillen, 671

N.E.2d 98, 102 (Ind.1996). If the evidence and inferences support the trial

court’s decision, we must affirm. In re L.S., 717 N.E.2d at 208.

[16] “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In

re M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. A trial court must

subordinate the interests of the parents to those of the child, however, when

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 evaluating the circumstances surrounding a termination. In re K.S., 750 N.E.2d

at 837. The right to raise one’s own child should not be terminated solely

because a better home is available for the child, id., but parental rights may be

terminated when a parent is unable or unwilling to meet his or her parental

responsibilities. Id. at 836.

[17] To terminate a parent-child relationship in Indiana, the State is required to

allege and prove:

(A) that one (1) of the following is true:
(i) The child has been removed from the parent for at least
six (6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6
that reasonable efforts for family preservation or
reunification are not required, including a description of
the court’s finding, the date of the finding, and the manner
in which the finding was made.
(iii) The child has been removed from the parent and has
been under the supervision of a county office of family and
children or probation department for at least fifteen (15)
months of the most recent twenty-two (22) months,
beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in
need of services or a delinquent child;
(B) that one (1) of the following is true:
(i) There is a reasonable probability that the conditions
that resulted in the child’s removal or the reasons for
placement outside the home of the parents will not be
remedied.

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 (ii) There is a reasonable probability that the continuation
of the parent-child relationship poses a threat to the well-
being of the child.
(iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;
(C) that termination is in the best interests of the child; and
(D) that there is a satisfactory plan for the care and treatment of
the child.

Ind. Code § 3l-35-2-4(b)(2). The State must prove these allegations by clear and

convincing evidence. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g

denied. If the court finds the allegations in the petition are true, it must terminate

the parent-child relationship. Ind. Code § 31-35-2-8.

[18] Clear and convincing evidence need not establish that the continued custody of

the parents is wholly inadequate for the child’s very survival. Bester v. Lake

County Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005). Rather, it is

sufficient to show by clear and convincing evidence that the child’s emotional

development and physical development are put at risk by the parent’s custody.

Id. If the court finds that the allegations in a petition are true, the court shall

terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

[19] Mother and Father argue that the evidence presented by DCS does not support

the trial court’s findings that a reasonable probability exists that the reasons for

the children’s placement outside their care would not be remedied or that

continuation of the parent-child relationship poses a threat to the children’s

well-being. Mother contends that she never abused her children, was bonded

with and affectionate with them, and her lack of contact with the children after
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 the termination petition was filed was due to financial hardship and inadequate

transportation. She also argues that the trial court should not have based its

conclusions on any issues or findings that were decided in the prior termination

action.

[20] Father argues that the reason for the children’s removal was his use of

marijuana, and he no longer uses marijuana. He claims that the reason he failed

to visit his children after November 2013 was because he believed it was not

possible to see his children and he did not want to visit his children while he

was angry about the case. He denies any allegations of domestic violence. He

contends that his parental rights were terminated because of his poverty, rather

than any threat to his children’s well-being.

A. Conditions That Led to Removal of the Children Would Not Be Remedied

[21] When making a determination as to whether a reasonable probability exists that

the conditions resulting in a child’s removal or continued placement outside of

a parent’s care will not be remedied, the trial court must judge a parent’s fitness

to care for her child at the time of the termination hearing while also taking into

consideration evidence of changed circumstances. A.D.S., 987 N.E.2d at 1156–

57. The trial court is also required to consider the parent’s habitual patterns of

conduct in order to determine the probability of future neglect or deprivation of

the child. Id. at 1157. The trial court may consider evidence of a parent’s prior

criminal history, drug and alcohol abuse, history of neglect, failure to provide

support, and lack of adequate housing and employment. Id. The trial court may

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 also consider the services offered to the parent by DCS and the parent’s

response to those services as evidence of whether conditions will be remedied.

Id. DCS is not required to provide evidence ruling out all possibilities of change.

Id. Instead, it needs to establish only that a “reasonable probability” exists that

the parent’s behavior will not change. Id.

[22] The evidence shows that Mother only sporadically complied with services

ordered by the court, even after the first termination petition was denied, that

she did not maintain regular contact with her case manager, that she bragged

that she could easily avoid drug screens by staying out of contact with DCS,

and that she never completed any of the more than ten substance abuse

treatment programs in which she was ordered to participate. After visits with

her children were ordered to be supervised on November 5, 2013, Mother

visited her children only five times. She last spoke with her children by phone in

February 2014.

[23] Father also failed to complete many of the services ordered by the court except,

unlike Mother, Father completed substance abuse treatment. However, Father

admitted to smoking spice and using heroin for several days just before the

second termination hearing. Father’s violent tendencies grew more serious over

the course of the case; he was involved in multiple domestic violence incidents

with Mother, and he bragged to police officers that he was a very violent person

and a drug dealer. Father visited the children only twice after his visits were

ordered to be supervised, with his last visit occurring on February 18, 2014.

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[24] FCM Neeley testified that the conditions that led to the children’s removal

would not be remedied because, during the four years since the children were

adjudicated CHINS, Mother and Father had made little progress with their

substance abuse problems and, in fact, new problems had arisen in the form of

instability and domestic violence.

[25] In light of this evidence, we cannot say that the trial court clearly erred in

concluding that a reasonable probability exists that the conditions which led the

children’s removal would not be remedied.

B. Continuation of the Parent-Child Relationship Poses a Threat to the Wellbeing of

the Children

[26] When reviewing the question of whether continuation of the parent-child

relationship poses a threat to the child’s well-being, termination is proper when

the evidence shows that the emotional and physical development of a child is

threatened. C.A. v. Ind. Dep’t of Child Servs., 15 N.E.3d 85, 94 (Ind. Ct. App.

2014). A trial court need not wait until a child is irreversibly influenced by a

deficient lifestyle such that his or her physical, mental, and social growth is

permanently impaired. Castro v. Ind. Office of Family & Children, 842 N.E.2d 367,

372 (Ind. Ct. App. 2006).

[27] D.V. was born prematurely, with underdeveloped lungs, and testing positive for

THC. She has asthma and requires daily treatments and medications. J.M. has

behavioral issues and mood swings. After the children’s trial home visits with

Parents, J.M. suffered from nightmares related to the domestic violence and

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 drug abuse he witnessed at his parents’ home. He was diagnosed with post-

traumatic stress disorder and adjustment disorders with mixed anxiety. His

therapist testified about concerns that J.M.’s post-traumatic stress disorder

would return if he were returned to his parents’ care.

[28] The children’s court appointed special advocate testified about her concerns

about the impact of the parents’ domestic violence on the children as well as the

parents’ lack of involvement in the children’s lives, including their medical

appointments and school activities. She emphasized D.V.’s health problems

and her need for careful medical care and stability. FCM Neeley noted that the

children had been removed from Parents, except for a brief period of trial home

visits, for forty-five months, which was nearly all of D.V.’s life, that parents had

regressed rather than progressed in addressing their substance abuse problems

and lack of stability, and that Parents had not complied with the ordered

services. He also noted that the children’s foster parents were willing to adopt

the children and that DCS’s plan for the children was adoption by the foster

parents. In light of this evidence, the trial court could reasonably conclude that

the continuation of the parent-child relationship posed a threat to the well-being

of the children.

[29] Mother also argues that the evidence does not support the trial court’s findings

that Parents did not complete the services ordered by the court, claiming that

they believed their services were closed when the petition to terminate parental

rights was filed and that financial hardship and transportation problems

prohibited them from completing the services or staying in contact with the

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 children. This argument, however, amounts to a request that we reweigh the

evidence, which we will not do.

II. Ineffective Assistance of Counsel

[30] Regarding the assistance of counsel in a termination proceeding, the Indiana

Supreme Court has held:

Where parents whose rights were terminated upon trial claim on
appeal that their lawyer underperformed, we deem the focus of
the inquiry to be whether it appears that the parents received a
fundamentally fair trial whose facts demonstrate an accurate
determination. The question is not whether the lawyer might
have objected to this or that, but whether the lawyer’s overall
performance was so defective that the appellate court cannot say
with confidence that the conditions leading to the removal of the
children from parental care are unlikely to be remedied and that
termination is in the child’s best interest.

Baker v. Marion Cnty. Office of Family & Children, 810 N.E.2d 1035, 1041 (Ind.

2004). Mother and Father both argue that their counsel were ineffective because

they did not object to evidence and issues that had been considered by the trial

court during the previous termination proceeding on the basis of res judicata.

[31] The doctrine of res judicata operates to preclude the litigation of matters that

have already been litigated. In re Adoption of Baby W., 796 N.E.2d 364 (Ind. Ct.

App. 2003), trans. denied. The principle of res judicata is divided into two

branches: claim preclusion and issue preclusion. Id. Claim preclusion applies

where a final judgment on the merits has been rendered which acts as a

complete bar to a subsequent action on the same issue or claim between those

parties and their privies. Id. Issue preclusion, also referred to as collateral
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 estoppel, bars the subsequent relitigation of the same fact or issue where the fact

or issue was necessarily adjudicated in a former suit and the same fact or issue

is presented in a subsequent action. Id. When, as here, a party argues that the

claim preclusion component of res judicata applies, four factors must be present,

namely: (1) the former judgment must have been rendered by a court of

competent jurisdiction; (2) the former judgment must have been rendered on

the merits; (3) the matter now in issue was, or could have been, determined in

the prior action; and (4) the controversy adjudicated in the former action must

have been between parties to the present suit or their privies. Marsh v. Paternity

of Rodgers by Rodgers, 659 N.E.2d 171 (Ind. Ct. App. 1995).

[32] In its order denying the first termination of parental rights petition, the trial

court noted that both Mother and Father had “tried at times to comply with

services in the face of considerable obstacles and have been successful in

completing some services.” Mother Appellant’s Supplemental App. p. 8. The

court also observed that the parents had attempted to maintain their

relationships with the children while the children were removed from the home

and had also “tried to provide a stable and adequate home for the children” but

had “significant difficulty in doing so” due, in part, to criminal charges that

were later dismissed. Id. The court held that (1) DCS failed to prove that the

conditions that resulted in the children’s removal will not be remedied and (2)

continuation of the parent-child relationship would not pose a threat to the

well-being of the children,” emphasizing that Mother and Father had

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 “improved their respective situations” and that the children could remain safely

in foster care while the parents “continue[d] to improve their situation.” Id.

[33] Much of the evidence considered by the trial court in the second termination

proceeding related to events that occurred after the first termination petition was

denied in April 2013, including evidence of domestic violence, continued drug

abuse, and lack of contact with the children. Thus, the order was not barred by

principles of res judicata.

[34] We further note that the progress or lack of progress made by a parent cannot

be measured without examining the conditions that existed at the time a case

began and the events that unfolded throughout the pendency of the case. The

court must be free to examine all of the circumstances and evidence to arrive at

a conclusion as to which outcome will be best for the children. Here, the trial

court found in the April 2013 termination case that DCS had not presented

clear and convincing evidence that Parents’ parental rights should be terminated

because Parents’ appeared to be attempting to improve their situation. The issue

of whether Parents would be successful in their efforts remained open for future

review. Mother and Father have not demonstrated how, if at all, their counsels’

raising the res judicata argument would have changed the ultimate outcome of

the termination hearing. Therefore, we cannot say that Parents’ counsels’

performance “was so defective that the appellate court cannot say with

confidence that the conditions leading to the removal of the children from

parental care are unlikely to be remedied and that termination is in the child’s

best interest.” Baker, 810 N.E.2d at 1041.

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 Conclusion

[35] The trial court’s conclusion that the conditions that led to the removal of the

children would not be remedied was supported by sufficient evidence, as was

the trial court’s conclusion that the continuation of the parent-child relationship

posed a threat to the well-being of the children and that termination of the

parent-child relationship was in the best interests of the children. The parents’

arguments on appeal are little more than a request that we reweigh the

evidence, which we will not do. Furthermore, neither parent demonstrated that

they received ineffective assistance of counsel. For all of these reasons, we

affirm the order of the trial court terminating both Mother’s and Father’s

parental rights.

[36] Affirmed.

May, J., and Robb, J., concur.

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